The Non-Reappointment of Judge Akay: a blow to judicial independence

If States are permitted to take action against a Judge in violation of the applicable international legal framework, judicial independence—a cornerstone principle of the rule of law—and the integrity of our court as such are fundamentally at risk, as is the overall project of international criminal justice.


Judge Theodor Meron, MICT President

MICT President Theodor Meron

Kudos to Judge Theodor Meron for standing up for Judge Aydin Sefa Akay, and more importantly, for judicial independence. Let’s hope his admonitions do not amount to a lone cry in the wilderness of international justice.

How cowardly. Don’t count on the UN (here I am lumping in the Secretary-General, the General Assembly, and, especially, the Security Council) to live up to its obligations and show some backbone – even when failing to do so undermines its legitimacy and authority. All talk, no walk. Continue reading “The Non-Reappointment of Judge Akay: a blow to judicial independence”

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The Reversal of Bemba’s Conviction: what went wrong or right?

Jean-Pierre Bemba Gombo

On 8 June 2018, after a 10-year odyssey of proceedings, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Jean-Pierre Bemba Gombo was acquitted by the International Criminal Court (ICC) Appeals Chamber of all charges (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime) that he was unanimously convicted of by Trial Chamber III (Presiding Judge Sylvia Steiner, Judge Joyce Aluoch, and Judge Kuniko Ozaki).

It was as close of a call as could be: a 3-2 split. One member of the Majority (now President of the ICC, Judge Chile Eboe-Osuji) was initially inclined to order a retrial, although the “balance of justice impel[led]” him to join the Majority’s decision to acquit Mr. Bemba. Continue reading “The Reversal of Bemba’s Conviction: what went wrong or right?”

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Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral

On 22 May 2018, the Palestinian Authority (PA) filed a referral to the International Criminal Court’s (ICC) Office of the Prosecutor (OTP), requesting it “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”

ICC Prosecutor, Mrs Fatou Bensouda and her team meet the Minister of Foreign Affairs and Expatriates of Palestine, H.E. Dr Riad Malki and delegation at the Court’s Headquarters

After learning of the referral and after seeing what was being reported by the major news outlets, Prime Minister of Israel Benjamin Netanyahu (PM) may have contacted Legal (referred to as “L.”) from the legal office of the Ministry of Foreign Affairs, asking to be briefed on the legal ramifications of the referral. Their meeting might have gone something like this: Continue reading “Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral”

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Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations

Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations, by Ronen Bergman, Random House, 2018, $35.00, 725 pages.

Assassinations … have an effect on morale, as well as a practical effect. I don’t think there were many who could have replaced Napoleon, or a president like Roosevelt or a prime minister like Churchill. The personal aspect certainly plays a role. It’s true that anyone can be replaced, but there’s a difference between a replacement with guts and some lifeless character.


Meir Dagan, Chief of the Israeli Mossad (p. xix)


The distinguishing mark of a manifestly illegal order … is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’ Not merely formally illegal, not covered up or partly covered … but an illegality that stabs the eye and infuriates the heart, if the eye is not blind and the heart is not obtuse or corrupt.


Judge Benjamin Halevy (p. 274)

Targeted killings, assassinations, summary executions and reprisal killings; acts of assassination without parliamentary or public scrutiny; unrestrained killings and orders to down passenger airlines with innocent civilians; strikes against foreign diplomats; two separate legal systems – one for ordinary citizens and one for the intelligence community and defense establishment; bombings of hotels, buildings, and residences; preemptive strikes, kidnappings, and killings of political leaders; invoking “state security” to justify a large number of acts that could be subject to criminal prosecution and long prison sentences; massive amounts of unavoidable or unreasonable collateral deaths; deceptions, and lies to the Prime Ministers, including cover-ups and willful blindness by Prime Ministers themselves; killings of scientists, sympathizers, and poisonings; disregard for practice directives for state-sanctioned assassinations; manifestly unlawful orders and reprimanding those who refused to follow such orders; use of proxies to carry out assassinations, torture, and degrading interrogations; killings of unarmed prisoners, and much more.

-versus-

Indiscriminate attacks against innocent civilians; targeted killings; car bombings and using other explosives to cause maximum death of innocent civilians; suicide bombers and proxy fighters financed by antagonistic neighboring countries; acts causing maximum and sustained terror; provocations to draw military responses and loss of innocent civilian lives; rocketing of residential areas, use of civilians as human shields, building of nuclear reactors, and threats of annihilation; kidnappings of soldiers to torture and kill or to swap for hardened imprisoned militants whose aim upon release would be to continue their terrorist acts and killings, hijackings, car-bombings, senseless executions, deceptions, lies, broken promises, and blatant denials of knowing that some on their side committed atrocities while claiming to be pursing peace, and much more. Continue reading “Book Review – RISE AND KILL FIRST: The Secret History of Israel’s Targeted Assassinations”

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HASPEL’S CIA NOMINATION: legality v. morality in the balance

CIA follows the law. We followed the law then. We follow the law today.


Gina Haspel, US Senate Intelligence Committee Confirmation Hearing, 9 May 2018

Gina Haspel

Gina Haspel is supremely qualified to be the next director of the US Central Intelligence Agency (CIA). For the past 33 years, she has worked her way up the CIA ladder from entry-level operative to station chief to Deputy Director. We do not know most of what she has done because the CIA – per its directives to which Haspel, as the current Acting CIA Director, is adhering – will not release most of the classified information in its files on Haspel’s activities. We do know however that she was directly – and some may say enthusiastically – involved in the CIA’s post 9/11 (2001) rendition, detention, and interrogation program, where torture (euphemistically referred to as enhanced interrogation techniques) was used with exuberant abandon.

If only the selection process for the next CIA Director was based solely on qualifications. Thankfully, it is not. Continue reading “HASPEL’S CIA NOMINATION: legality v. morality in the balance”

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Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict

Prosecutorial Discretion & The Interests of Justice: what, when, how

In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process. Continue reading “Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict”

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Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict

There is no peace without justice; there is no justice without truth.


Professor Mahmoud Cherif Bassiouni

Recently, I participated in a Flash-Colloquium titled: Justice, Truth and Peace. The topic was inspired by the sage Professor Bassiouni – a giant in the field of international humanitarian and human rights law. Sadly, he left us on 25 September 2017.

The presenters were given a maximum of three minutes to speak on one of the six permutations of these three words: Truth, Justice, Peace, Peace-Justice, Justice-Truth, and Truth-Justice-Peace.

About three minutes before the start of the colloquium, I was asked to make a presentation on peace within the context of Professor Bassiouni’s refrain. I agreed, though I knew I would have to speak off-the-cuff. I began feeling uneasy when I started hearing the presentations, which ranged from the philosophical to the theoretical to the sublime (poetry). What did I really know about peace? Continue reading “Book Review – The PEACEMAKER’S PARADOX: Pursuing Justice in the Shadows of Conflict”

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The Šešelj Appeal Judgement: making sense of instigation 

The crux of the Prosecution’s argument on appeal is the temporal link between Šešelj’s statements [statements threatening with “rivers of blood” and using inflammatory and derogatory epithets] and the contemporaneous or subsequent commission of crimes in various locations. The Appeals Chamber considers that a reasonable trier of fact could find such a link to be tenuous in circumstances where there was a significant lapse of time between the statement and the offences, allowing for the reasonable possibility that Šešelj’s statement did not substantially contribute to the commission of the specific crimes and other factors may have influenced the conduct of the perpetrators.


Prosecutor v. Šešelj, MICT-16-99, 11 April 2018, para. 132.

Vojislav Šešelj

On 11 April 2018, the Mechanism for International Criminal Tribunals (MICT) issued the much-anticipated judgement in Šešelj. The outright acquittal by the Trial Chamber on three counts of crimes against humanity (persecution, deportation, and the other inhumane act of forcible transfer) and six of war crimes (murder, torture and cruel treatment, wanton destruction, destruction or willful damage done to institutions dedicated to religion or education, plunder of public or private property), was greeted with disbelief and disdain – a shocker. How could this demagogue – whom many looked up to as a god-like figure (para. 147) and acted on his inflammatory refrains against non-Serbs – be acquitted?

Assuredly the Appeals Chamber would completely reverse – so the thinking was. Continue reading “The Šešelj Appeal Judgement: making sense of instigation “

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Response to Professor Claudio Guillermo Morassutti’s comment on When Reality Trumps Legality and Morality

CLAUDIO GUILLERMO MORASSUTTI
Professor Claudio Guillermo Morassutti

Professor Claudio Guillermo Morassutti of the University of Entrepreneurial and Social Sciences in Buenos Aires, Argentina, was gracious enough to provide a lengthy and insightful comment on my post Striking Syria for using chemical weapons: legality, morality, reality. Occasionally, a comment comes along that deserves more than just a brief response. This is one of them. Because of the length and depth of Professor Morassutti’s observations and for convenience, Professor Morassutti’s comment and my response appear back to back. Continue reading “Response to Professor Claudio Guillermo Morassutti’s comment on When Reality Trumps Legality and Morality”

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THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?

Two weeks ago the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a request to the Pre-Trial Chamber (PTC) seeking, for all intents and purposes, an advisory opinion on whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

Some of the commentaries on this have been interesting and insightful (see Kevin Jon Heller’s Three Cautionary Thoughts on the OTP’s Rohingya Request and Implications of the Rohingya Argument for Libya and Syria (and Jordan) in Opinio Juris, Andrea Raab’s and Siobhan Hobbs’s The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective in EJIL: Talk!, and Geoff Curfman’s ICC Jurisdiction and the Rohingya Crisis in Myanmar in Just Security). For the most part, I agree with these analyses. Continue reading “THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?”

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